The facts about Driving Under the Influence of Marijuana

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DRIVING UNDER THE INFLUENCE OF MARIJUANA

When most people think of “DWI” and “DUI” they generally relate it to alcohol. 

But with an ever-increasing number of states legalizing marijuana, either for medical or recreational purposes, law enforcement is focusing on driving under the influence of marijuana. 

For example, Colorado has legalized s marijuana for medical use and it appears that prescriptions for it are ever increasing. 

That said, DWI and DUI arrests are increasing both there and in Texas because of marijuana use.

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Driving While Intoxicated – Marijuana Laws in Texas versus other states

As of 2018, recreational use of marijuana is legal at the state level in ten states: Alaska, Washington, Oregon, California, Nevada, Michigan, Vermont, Massachusetts, Main and Colorado.

Texas DWI and DUI laws make simple possession of marijuana illegal. 

But like Colorado and the other states, Texas makes it illegal to operate a motor vehicle while intoxicated by marijuana. 

Interestingly, law enforcement in Colorado and in Texas have seen a dramatic rise in the number of DWI and DUI arrests due to marijuana intoxication.

You can be found guilty of driving while intoxicated under Chapter 49.04 of Penal Code if it is shown that either you lost the normal use of your (1) mental or (2) physical faculties, or (3) you had an alcohol concentration of .08 or greater at the time you were driving.

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When it comes to the loss of normal use of mental or physical faculties, the law reads

“… not having the normal use of mental or physical faculties by the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.”

 

If you voluntarily consume a substance other than alcohol like marijuana and it causes you to lose the normal use of either your mental or physical faculties, then this definition covers driving under the influence of marijuana. 

However, unlike alcohol, there is no per se value for drugs such as marijuana.

Signs That A Driver is Driving Under the Influence of Marijuana

The Marijuana plant (Cannabis Sativa, Cannabis Indica) is the most commonly used illegal drug in the world and behind thousands of arrests every year. 

Generally, you must be found in possession of it in some usable quantity to face legal consequences.

The cannabis leaves, stems and seeds contain THC (tetrahydrocannabinol), a psychoactive ingredient that’s absorbed into the user’s bloodstream when smoked or, in some cases, ingested. 

Once it’s transported to the brain, it affects certain receptors by overstimulating them and causing the user to feel euphoric or “high.”

These effects can include:

  • altered senses
  • altered sense of time
  • changes in mood
  • impaired body movement
  • difficulty with thinking and problem-solving
  • impaired memory
  • hallucinations (when taken in high doses)
  • delusions (when taken in high doses)
  • psychosis (when taken in high doses)

Measuring intoxication and “No Refusal” programs

Currently, police labs measure alcohol by having the accused citizen submit to either a breath test or a blood test. 

Neither the Intoxilyzer 5000 nor the Intoxilyzer 9000, which are the machines used in Texas to quantify breath/blood alcohol concentration, can detect tetrahydrocannabinol or “THC”, the active ingredient in marijuana. However, a blood test can.

Accordingly, many counties in Texas have started to focus on blood testing in DWI and DUI investigations where marijuana is suspected as the intoxicant. 

Indeed, many counties have obtained grants to fund “No Refusal” programs where police obtain search warrants to take blood samples. 

This sample is then analyzed to obtain a measurable amount of alcohol or other substances, like marijuana, that may be in a person’s blood.

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DWI and DUI of Marijuana Evidence and Per Se Definitions of Intoxication

In every DWI case, you would expect to see certain pieces of evidence such as a breath or blood alcohol test and a video of the accused performing field sobriety tests. 

Blood tests can show traces of marijuana, or more specifically THC, in a suspect’s system, but the State must also prove that the THC caused them to become impaired to a level where they were no longer “normal.”

In Colorado and Washington, where recreational use of marijuana is legal at a State level, that limit is five nanograms per milliliter of blood or five parts per billion. 

But, because recreational use of marijuana is not legal in Texas, many prosecutors and judges often look harshly upon any detectable amount of THC found in the driver’s blood.

Texas has no “per se” definition of intoxication by the introduction of marijuana into the system, so courts and prosecutors face an extra “burden of proof” challenge meaning that the arresting officer must conduct a more thorough and meticulous investigation.

In addition to the “loss of the normal use of mental or physical faculties” standard, Texas law provides that a person is considered intoxicated if that person has a BAC of 0.08 or higher, regardless of whether that person has lost the normal use of his or her mental or physical faculties.

In many DWI cases involving marijuana, law enforcement may call a specially trained officer known as a Drug Recognition Expert (DRE) to the scene to aid in the investigation. 

The DRE will employ a more thorough battery of tests in an effort to render an “expert” opinion that the person is impaired.

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The future of DWI Marijuana in Texas

Also, looking to the future, there are many instruments being tested now for use of police on the roadside that will test a person’s saliva for both identification and quantification of THC. 

These roadside saliva tests will most likely be in Texas in the near future.

And so, our advice is not to drive if you consumed any marijuana. 

A taxi cab fee is much cheaper than that of the bondsman and lawyer. 

Should you have any questions, please feel free to contact us at 713-524-1010 or contact us here.

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Form Submissions have a fast response time. Request your free consultation to discuss your case with one of our attorneys over the phone. The use of this form does not establish an attorney-client relationship.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

What You Need to Know About the Four Propositions on the Texas Ballot

Bill of Rights, role of a criminal defense lawyer, attorney
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WHAT YOU NEED TO KNOW ABOUT THE FOUR PROPOSITIONS ON THE TEXAS BALLOT

Bill of Rights, role of a criminal defense lawyer, attorney

March 1, 2016 is a very important election day in Texas, because you are being asked to vote not only on candidates but also on four propositions. 

As I have said many times, you, as Americans and Texans, are part of “We the People.” 

In that role, you have an absolute right to vote any way you want, but you have an obligation and a duty to cast only an informed vote—that means being INFORMED.

As part of the democratic process, it is always a good idea to share your ideas with others, to be open- minded about differences of opinion and to always follow your conscience. 

With that idea in mind, I want to share my ideas with you on the four propositions that will be before you.

I believe that our country is headed toward several critical forks in the road, and if we choose unwisely, our path could be one of dire self-destruction. 

I say this not to scare you, but rather as an attempt to focus your attention on the importance of this election.

Below, I have posted the four propositions that are on the upcoming ballot and the ballot’s brief explanation, as well as my commentary about what it is asking you to vote on. 

Indeed, the absence of a greater explanation on the ballot actually misrepresents what the proposition is really asking. 

I welcome your thoughts—whether you agree with me or not. That’s part of what being an American is about!

A Founding Father’s Point of View on Propositions 1, 2, 3 and 4.

The explanations following each proposition below should have included the text of the Ninth and Tenth Amendments. 

If we turn back the pages of history, the founding fathers thought it very important that the federal government be a LIMITED one. 

They created a system of checks and balances to create those limits on purpose. 

We have heard that our government has three branches: the Executive, the Legislative and the Judicial. 

Actually, our system has five branches.

OUR FOURTH BRANCH OF GOVERNMENT

As contemplated by the framers of the Constitution, “We the People” reserve power for ourselves and place other power in the government. 

In truth and practice, our ability to vote makes us “We the People,” the fourth branch of government. 

In 1788, the Constitution was born and in 1791 the Bill of Rights spelled out its specific limitations by enumerating powers reserved for the people. 

Clearly, at that time it was not debatable that the federal government was not meant to have all of the power. 

Remember, the first 10 amendments are reservations of power that are kept by “We the People.” 

Those amendments were never given to us by the federal government, and anyone who suggests otherwise does not know our history or the meaning of the Constitution.

In regard to reservation of power, and to prevent the federal government from overreaching, “We the People” reserved all the then existing rights in 1791 that were not enumerated in the Bill of Rights. 

The founders said this in the Ninth Amendment, which says,

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

OUR FIFTH BRANCH OF GOVERNMENT

So what is the fifth branch of government? 

The answer is, “The States.” 

The states were to be a check and balance on the federal government just as “We the People” were to be. 

Regrettably, however, over the years, there have been unwise modifications/amendments to the Constitution that altered the well-thought-out checks and balances of our founders.

That said, it is very important that we understand the thinking of the founders, and the purpose of the Constitution in creating a “limited federal government” before we start tinkering with it in a way that may further weaken the system of checks and balances by “We the People“ and the States. 

WE THE PEOPLE do not want to give away any of our reserved powers, because once done, it’s almost impossible to get them back!

PROPOSITION 1

Texas should replace the property tax system with an alternative other than an income tax and require voter approval to increase the overall tax burden.

Explanation: This proposition seeks to see if Republican primary voters in Texas favor abolishing the property tax and instead having a consumption or sales tax fund government services.

VOTE “YES,” AND HERE’S WHY:

THE ROOTS OF LAND OWNERSHIP

Part of the American Dream is to own property. 

But the reason that it’s something Americans aspire to achieve is not just fantasy, but rather is tied to the roots of our Constitution. 

The founders originally set up the Constitution so that only property owners—those who were “invested” in the country—could vote. 

If you did not own property, you still had a voice to speak your mind; however, you could not vote. 

Looking at the big picture today, the United States is a land that is created by recognizable borders. 

Land is property. 

If you have land, then you have a border to it. 

The founders did not want people who did not own land to make decisions that would negatively impact those who had made a greater investment in the future of this country. 

Today, if you own land, then you actually own a part of these United States. 

In my view, we should all strive to belong to our community and try to further our collective well-being by investing in it.

INVEST IN AMERICA

If you are a property owner, then you pay a tax that non-property owners do not. 

It hardly seems fair that people who rent a condo, apartment or home in your neighborhood don’t pay a tax for services that property owners pay. 

To be fair, everyone who lives in the community ought to pay an equal tax for services such as schools, the fire department, law enforcement, etc. 

Said another way, if you want to become invested in our government in a fair way, either get rid of the property tax and tax everyone the same, or re-amend the Constitution and allow only property owners to vote on property tax issues. (What is your stance on this issue?)

PROPOSITION 2

Texas cities and counties should be required to comply with federal immigration laws or be penalized by loss of state funds.

Explanation: Proposition #2 on the ballot is asking Texas Republican primary voters their position on local and county sanctuary city policies. Sanctuary cities or counties are governmental subdivisions that have made a policy decision not to follow federal immigration laws. For example, these local governing entities have made the decision not to detain and hold individuals that the Immigration Customs Enforcement wants to apprehend and return to their country of origin.

VOTE “YES,” AND HERE’S WHY:

THE POWER OF FEDERAL FUNDING OVER STATES

Imagine your boss at work telling you, “Vote my way or be fired.” Or imagine someone who has embarrassing but legal information on you saying, “Pay me and do what I want or I’ll embarrass you by releasing this information.” 

In the world of criminal law, that is extortion or blackmail. 

And that is exactly what this proposition does to the state of Texas. 

Essentially, it says that if Texas doesn’t do what Uncle Sam wants, we will lose tax money that we paid in to the system. 

The penalty here hurts everyone in a jurisdiction—both the decision makers and the innocent citizens.

THE FEDERAL SHAKEDOWN

The federal government often threatens states into passing changes in their laws to comply with its wants and desires. 

For example, did you know that Texas used to have a law that said a driver was considered to be intoxicated when blood alcohol concentration reached .15? That was later changed to .10, and changed again to .08.

 Each time, modification to the law had nothing to do with new findings in science or medicine. Rather, the change occurred because the federal government threatened to withhold millions of dollars in federal highway funds. 

To be clear, I am not condemning the changes, but I do condemn the way they were made because it denied the people of the state of Texas a real choice.

Anytime the federal government threatens its citizens with a penalty if it doesn’t get its way is wrong. 

When that strong-arm tactic is used, the federal government stops being “limited” and becomes an “unlimited” dictatorship.

SELECTIVE MUSCLE

But the federal government seems to want to pick and choose where it throws its power. Consider our federal immigration laws. 

Clearly our federal laws on immigration need to be enforced, but those laws have long been ignored by state and local politicians who flout or disregard them. 

Since those politicians are the ones making policy decisions that violate federal law, it is only fitting and proper that they be personally held accountable and criminally prosecuted.

If those local politicians object to the federal Immigration laws, then they should go to Congress and ask it to change them. 

Think about it: If San Francisco City Council members had been prosecuted by the Feds, how long do think sanctuary cities and counties in California would last? 

Not long!

THE RULE OF LAW

Let’s penalize the guilty politicians, not the innocent citizens or states. 

Let’s not carelessly give up our “We the People” rights or our state’s rights. 

Texas should not have any sanctuary jurisdictions and there should be no exceptions if we are to have a country of laws and a citizenry that respects those laws.

As citizens, however, “We the People” should want our representatives to follow the law, and we can enforce that desire with our vote! 

“We the People” should be vocal in our respective jurisdictions and tell our state politicians to act responsibly by doing the right thing and to abide by the federal law.

PROPOSITION 3

Texas should prohibit governmental entities from collecting dues for labor unions through deductions from public employee paychecks.

Explanation: This proposition wants to gauge the level of approval for a law that will prohibit the state and other governing units in Texas from doing payroll deductions for union dues. In other words, this proposed statute would require union members to pay their own dues.

VOTE “YES,” AND HERE’S WHY:

NO UNION DUES

If we set up a law for the government to collect union dues, then we are taxing ourselves by creating a new bureaucracy to administer it. 

The founders believed that less government is better government! Giving the government unnecessary power to interfere with our private lives is just crazy. 

Vote “YES” to prohibit the government from collecting union dues, but, more important, to tell them that it has no business getting additional power to do a union’s bidding against its membership. 

If union members don’t pay their dues, then the union should simply kick them out. Enough said!

PROPOSITION 4

Texas and its citizens should strongly assert Tenth Amendment Rights guaranteed by the U.S. Constitution.

Explanation: By approving this proposition, Texas Republican primary voters will send a signal to the Texas legislature, the governor, and other state elected officials to assert state rights and use all tools afforded in the Constitution to stop expansive federal government power.

The Amendment of States Rights: The Tenth Amendment provides:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

VOTE “YES,” AND HERE’S WHY:

ABOVE THE LAW

Voting “Yes” on Proposition 4 helps restore a proper check-and-balance system by the States. Recent history proves that Congress will not police itself. 

That same history tells us that our U.S. Senators and Congressman often vote to be treated better than “We the People.” 

That’s how they excluded themselves in many ways from Obamacare.

They also receive a pension for life—even if they serve just one day. 

Where the hell were “We the People” when that happened? Clearly, we need an amendment to the Constitution that Congress can NEVER exempt themselves from the same laws that apply to all of us! 

Recently, there has been a movement by many patriots to avail ourselves, “We the People,” of a constitutional back door to reel in Congress when it will not correct what is broken.

Article 5 of the Constitution provides for there to be a Convention of States where, if enough agree to change the Constitution, then it automatically happens irrespective of what Congress wants. 

It’s the ultimate trump card so vote “YES” to help reestablish checks and balances as they were intended by the framers of our Constitution.

Closing comment

Be informed. 

Remember, this is your country—invest some time in it by studying the candidates and the issues. 

Think American! 

Think Texan! 

Follow your conscience! If you are spiritual, pray for guidance.

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Form Submissions have a fast response time. Request your free consultation to discuss your case with one of our attorneys over the phone. The use of this form does not establish an attorney-client relationship.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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Should we punish the Sick? Why current DWI laws fail repeat offenders.

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WHY CURRENT DWI LAWS FAIL REPEAT OFFENDERS

Trichter & LeGrand DWI Lawyers

Recently, I read a story about a man who was arrested for DWI in Montgomery County.  

It was his 12th DWI arrest.  

There was some discussion in the media that the justice system should throw the book at this DWI offender. 

Ultimately, the man pled guilty and was sentenced to 30 years in prison.

Reflecting on a person who had 12 DWI arrests, I wondered how it could have been possible to have a dozen alcohol related offenses occur. 

From my experience, I knew the sad answer. 

Regrettably, our criminal justice system is not set up to really treat people with addictions to alcohol or drugs.

I thought what a shame, that this sick man had not been diverted out of the criminal justice system and into the health care system where he belonged. 

Had he been placed in a real rehabilitation program before, instead of a real jail, then perhaps, his DWI offenses would have stopped at 2 or 3.

Our criminal justice system is supposed to be just. 

We are not supposed to punish DWI offenders because they are sick. 

People with addictions suffer great mental and physical compulsions to feed their habit. 

Addicts cannot be expected to simply turn off the compulsion part of their brain, absent help from mental health professionals. 

When I think of all the money wasted on processing this man through the criminal justice system, I am disgusted that the funding was not better spent on addressing the real problem and not the effect.

Of course, no one wants to have a drunk driver on the roads. 

It is not debatable that intoxicated drivers are a danger to themselves and others. 

It is not debatable that this ill person could have had a better life if he had been helped by the mental health system instead of shuffled through the criminal justice system.  

What do you think?

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Get A Fast Response

Form Submissions have a fast response time. Request your free consultation to discuss your case with one of our attorneys over the phone. The use of this form does not establish an attorney-client relationship.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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